Immigration matters: Types of 'hardships'

Catherine Bejerana Camacho
Pacific Daily News USA TODAY NETWORK
Catherine Camacho

Mabuhay and hafa adai! Generally, an individual who is a beneficiary of an immigrant petition filed on his or her behalf by a United States citizen spouse would have the ability to immigrate to the United States or adjust his or her status in the United States.

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There are certain instances, however, when the hopeful immigrant is deemed inadmissible because of a prior act that he or she committed. In those instances, the hopeful immigrant will not be issued a visa or granted an adjustment of status notwithstanding the approved petition filed on his or her behalf.

The period of inadmissibility is contingent on the act that triggered the individual from being deemed inadmissible. Sometimes the bar is a definite period such as three or ten years. In other instances, the bar can last a lifetime. 

Depending on the reason for the inadmissibility, in certain cases, the beneficiary may have the ability to file a waiver based on an extreme hardship of a qualified relative.  Note two important components of the waiver. First, the extreme hardship must be experienced or will be experienced by a qualified relative of the beneficiary, and not the beneficiary. Generally, the qualified relative is the United States citizen or permanent resident spouse or parent of the beneficiary. Although the impact of other family members of the beneficiary or the qualified relative may be considered in evaluating the case, the most important individual is the qualified relative.   

Second, the standard utilized is "extreme hardship" and not just "hardship." The Board of Immigration Appeals (BIA) has essentially identified what are deemed to be the common consequences of denying admission. These common consequences are what would be considered as "typical hardships."  

Such common consequences are, but not limited to the following: family separation, economic detriment, difficulties of readjusting to life in the new country, the quality and availability of educational opportunities abroad, inferior quality of medical services and facilities, and ability to pursue a chosen employment abroad. Thus, just merely articulating that if the beneficiary remains inadmissible to the United States will result in the qualified relative “separating” from or “missing” the beneficiary is insufficient.  Additionally, stating that the United States has better economic opportunities for the qualified relative is also insufficient.   

In analyzing the case, the adjudicating officer must evaluate each factor and consequences individually, cumulatively, and in totality. The beneficiary must, therefore, demonstrate that the hardship is “extreme” or rises above the “typical hardships.” An example of an extreme hardship maybe that the qualified relative suffers from a disability or a medical condition, which cannot be properly treated and/or addressed in the beneficiary’s home country. The qualified relative’s membership and service in the United States military, and his or her failure to properly continue with such service if the beneficiary cannot be admitted to the United States, can also rise to extreme hardship.            

As the above highlights, demonstrating “extreme hardship” is not an easy task to accomplish. Consequently, a consultation with an experienced immigration attorney will provide you guidance in this instance. 

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